Reports of Cases Heard and Determined in the Supreme Court of the State of New York (Volume 49)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1890. Excerpt: ... Third Department, November Term, 1886. Andrew. In 1882, James and Sarah conveyed to Sarah Turk, who thereupon brought an action of partition making the children of Andrew Smedes parties. This resulted in a judgment and sale, under which the defendant, in 1883, obtained the title under which he took and retains'possession. The court gave judgment for the plaintiff, finding among other things that an execution was duly issued to the sheriff, upon the judgment of 1818, against Philip Smedes. We think this finding cannot be sustained. The issue of the execution to the sheriff was vital to his power or jurisdiction to sell. He had no power to sell unless he had the execution. Jackson v. Ilasbrouck, 12 Johns., 213; Yates v. St. John, 12 Wend., 74.) He was a ministerial officer, but, as such, was charged with no power or duty touching these premises with respect to this judgment, except at the instance of William Swart, who, in order to set him in motion and clothe him with power, must first have placed an execution in his hands. The doing of this by Swart would have been strictly a private act, in which the public would have had no concern. Unless the recital of the issue of the execution in the deed is evidence of its issue, there is no evidence, and the deed of 1818 would be worthless, because not shown to be authorized. It is undoubtedly settled law that the recital, standing alone, unsupported by any evidence of possession under the deed, or recognition by Philip Smedes of its validity, or other acts in paii tending to support the deed or the recital, is not evidence of tlm fact of the issue of the execution. (Jackson v. Roberts, 11 Wend., 425; Hilly. Draper, 10 Barb., 454; Uardenburgh v. Lahin, 47 K Y., 109; Reed v. McCourt, 41 id., 435; Williams v. Pey...